Reconciliation Romance: A Study in Juridical Theology

Who could be found to reconcile me to you? Was I to beg the help of angels? What prayer should I use? What sacred rites?

Augustine, Confessions

Fishing Net

In 1984, Ronald Edward Sparrow, a member of the Musqueam Indian Band in Vancouver, was charged with fishing with a net longer than the length allowed by the band’s food fishing license. Sparrow did not dispute the facts. He responded that the license was inconsistent with Section 35(1) of the Constitution Act of 1982, which states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The Crown argued that the provincial Fisheries Act had extinguished the band’s Aboriginal right to fish.¹ The assumption that an act of legislation has the power to extinguish an Aboriginal right dates back to a case called St. Catherine’s Milling. In May 1885 the province of Ontario petitioned the High Court to stop the company from logging on land northwest of Lake Superior. The province explained that it had not granted the company permission to log. The company responded that it had paid the Dominion of Canada for permission to remove two million feet of timber, arguing that the Dominion of Canada had acquired title from the Saulteaux First Nation in the Northwest Angle Treaty of 1873.² The case went through two appeals before it was referred to the Judicial Committee of the Privy Council of Great Britain. Lord Watson delivered the committee’s reasons in 1888. He found that the disputed area came under the Royal Proclamation issued by George III on October 7, 1763, shortly after France ceded Canada to Great Britain in the Treaty of Paris. That proclamation, wrote Watson, granted Indigenous peoples “a personal and usufructuary right” to their traditional “hunting grounds” but made the right depend on the sovereign’s “Will and Pleasure.”³ The right was the sovereign’s to give, and the sovereign’s to take away. Almost a century later, in Calder v. B.C., the Supreme Court of Canada ruled that Aboriginal rights could be extinguished whenever the “sovereign authority” chose to exercise the Crown’s complete dominion, as long as the legislation indicated a clear and plain intention to extinguish.⁴ When Sparrow’s net came before the Court, Aboriginal rights existed at the pleasure of the Crown.⁵

Behind the pleasure doctrine lies the fact of sovereign ipseity. According to Derrida, “ipseity” is the capacity for self-causation: “the power that gives itself its own law.”⁶ He takes the term from the Latin intensive pronoun ipse, which means “-self,” as in himself (ipse), herself (ipsa), itself (ipsum). The principle of ipseity empowers a state, a monarch, or a people not only to grant rights but also to suspend them. Not surprisingly, it is a power that the sovereign is not inclined to share: a “divisible or sharable sovereignty,” Derrida remarks, “is not sovereignty.”⁷ The force of ipseity turns back on itself, in a circular motion, in order to keep itself unscathed, sacrosanct. When it encounters the law of the other, a sovereign moves to make that law “similar or semblable” to the law of the state. Derrida borrows another Latin term for this “action of making semblable,” naming it adsimilatio. A truly sovereign ipseity assimilates competing sovereignties to itself. To subject it to “partitioning,” to “being shared,” would turn it against itself, as if it had contracted an autoimmune disorder (r, 11 and 101). Only pleasure, which acts within the circle of ipseity, can compel the sovereign to share. Only pleasure mobilizes “the energy of an intentional and deciding will” that mobilizes itself (r, 44).

The Supreme Court’s decision in Sparrow, however, seemed to indicate that the Constitution Act of 1982 had ushered in something new.⁸ Chief Justice Dickson observed that according to the Court’s decisions in two previous cases, Guerin and R. v. Taylor and Williams, the federal government acts in a fiduciary capacity toward Indigenous peoples (rs, at 1108). The “recognition and affirmation” of Aboriginal rights in Section...